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An attempt to exclude evidence from a music piracy case seized in sweeping raids by the Australian recording industry has been rejected by a federal court judge.
The evidence was gathered February 5th by Music Industry Privacy Investigations (MIPI), the enforcement agent of Australia's recording industry, in court-ordered raids at 12 locations throughout the country, including the Sydney headquarters of Sharman Networks, maker of Kazaa, one of the most popular file-sharing programs on the Internet.
The raids were sanctioned by Judge Murray Wilcox, who issued an Anton Pillar order for them. Such orders are an extreme measure and are used when there is an imminent threat that evidence will be destroyed.
Proeedings Will Proceed
Sharman challenged the order, contending the MIPI withheld facts from the judge that would have dissuaded him from issuing it.
In addition to rejecting Sharman's challenge of the Pillar order, Judge Wilcox also refused the company's request to delay the Australian proceedings until a similar case now being heard in the United States is completed.
Although Judge Wilcox rejected Sharman's application, he did not grant MIPI uncontrolled access to the evidence it gathered February 5th. Instead, he suggested that the recording industry group and Sharman work out a scheme for accessing the evidence.
Face the Music
Both parties are due back in court March 23rd.
Lawyers for Sharman told reporters after the proceeding that they will withhold comment until they review the 23-page opinion.
"It is now time for Kazaa to stop using delaying tactics and face the music," MIPI General Manager Michael Speck said in a statement released following the decision.
Billions Lost
"Kazaa's application was to avoid evidence seeing the light of day," he added. "It is part of an obvious attempt to protect the largest copyright infringement business in the world."
Speck argued that Kazaa is costing the record industry and music creators "billions of dollars in lost royalties" each year. "The industry is committed to the growth of legal online music providers, and stopping Kazaa's illegal activities is a necessary step in that process," he said.
Another step in the process may involve pressuring file-sharing software makers to incorporate technologies into their applications that will thwart trading of copyrighted material on the Internet.
Audible Magic
One such technology, developed by Audible Magic of Los Gatos, California, has been making the rounds of offices inside the Beltway over the last month under the auspices of the Recording Industry Association of America (RIAA).
Audible Magic is hawking two products: an "appliance" that allows network administrators to block sharing of copyrighted material over their networks, and a client-based program that can be incorporated into a file-sharing client to prevent downloading or uploading of copyrighted materials by individuals.
The products can listen to a audio file, create an acoustic fingerprint for it and compare that fingerprint with those in its database of copyrighted material -- all on the fly and, according to Audible Magic, with a minimum of performance degradation, an assertion challenged by some in the file-sharing industry.
Futile Exercise
"In real-world terms, not only would Audible Magic bring networks to a crawl, thus putting us out of business, but how long do you think that it would take a 16-year-old kid in Estonia to write a program that would strip it from any P2P application?" Wayne Rosso, CEO of Optisoft in Madrid, Spain, told TechNewsWorld via e-mail.
"And of course everyone in the food chain would have to buy into this one technology, which isn't going to happen," he added. "It's a ridiculous exercise in futility."
Technology solutions that exclusively try to block sharing of copyrighted material are full of challenges, according to Pat Breslin, CEO of Relatable in Alexandria, Virginia, a maker of acoustic fingerprinting products. "Attempting to block the flow of content without offering an alternative is a battle against a guerrilla war," he told TechNewsWorld.
Cyncial Argument
According to the RIAA, technologies like Audible Magic's prove that peer-to-peer software makers can control illicit file sharing on their networks if they have the will to do so.
"Their argument is artful, as it is utterly false and cynical," Adam Eisgrau, executive director of Washington, D.C.-based P2P United, which represents several major peer-to-peer providers, countered in an interview with TechNewsWorld.
"They're conveniently sliding over the fact that in order to work, they must compel the reengineering of a communications technology, of a software package -- in fact, of an industry," he added.
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